Plea To Render Justice For Malaiha (Hill Country) Tamil Refugees From Sri Lanka – OpEd

By Prof. V. Suryanarayan

On July 19, 2016 the Government of India introduced a bill in Parliament to amend certain provisions of the Citizenship Act, 1955. The objective of the proposed bill is to enable the Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, who have fled to India from Pakistan, Bangladesh and Pakistan without valid travel documents or those whose travel documents have expired in recent years to acquire Indian citizenship by process of naturalization.

Under this bill, such persons will be treated as illegal immigrants for the purpose of the Citizenship Act. In another amendment the aggregate period of residential qualification for the purpose of citizenship by naturalization of such persons is proposed to be reduced from 11 years to 6 years. A large number of people, who would otherwise be illegal immigrants, can now heave a sigh of relief. If the bill goes through they would be eligible to become Indian citizens.

Attempts to build the nation on the basis of Islam, increasing popularity of obscurantist Islamic political parties, attacks on Hindu places of worship, forcible conversion to Islam and assassination of Hindu priests have become regular phenomenon in Pakistan and Bangladesh. Over the years Hindu population has declined and, what is more, many Hindus are being forcibly converted to Islam. The Hindus do not occupy high positions in important walks of life like the armed forces, political life, diplomacy, teaching, law and medicine. The more daring among the discriminated Hindus take the risk, cross the borders and have sought asylum in India. Conferment of Indian citizenship to these unfortunate children of Mother India will definitely be an act of magnanimity and will be welcomed by all section of Indian population.

Background

The Citizenship Amendment Bill, 2016 owes its genesis to the policies and programmes of the Bharatiya Janata Party (BJP). The Party has always advocated strong links between India and the people of Indian origin living abroad. Since religion is an important source of identity the BJP has been promoting cultural and religious links. It should be highlighted that the BJP, in its election manifesto for 2014 parliamentary elections, had promised to confer Indian citizenship on Hindu refugees. After coming to power concerned Ministries were asked to speed up the administrative and legal procedures.

Since singling out Hindus alone could be discriminatory, the bill has extended the right to acquire citizenship to other religious minorities living in these three countries.

The bill, if passed, would be of immense benefit to the Chakmas and Hajongs of Bangladesh, displaced because of the construction of the Kaptai dam, who had been refugees for nearly 65 years. The Supreme Court in Committee for the C R of C A P V The State of Arunachal Pradesh directed the Government of India and the State of Arunachal Pradesh to grant citizenship to eligible persons from these communities, and to protect their life and liberty and further prohibited discrimination against them.

Welcome Change

The proposed bill recognizes and protects the rights of the refugees and represents a welcome change in India’s refugee policy. But it would have been appropriate if the bill had used the term “persecuted minorities” instead of listing the non-Muslim minorities in the three countries. To give an example, the Ahmediyas are not recognised as Muslims in Pakistan and are subject to many acts of discrimination. Other groups include Rohingiyas, who are subject to discrimination in Myanmar and have come to India through Bangladesh. Such a gesture would also have been in conformity with the spirit of linguistic and religious rights of the minorities guaranteed under our Constitution. Unfortunately the bill does not take note of the refugees from among the Muslim community, who have fled due to persecution and singles out on the basis of religion, thereby being discriminatory.

It should also be pointed out that couple of years ago, speaking from the ramparts of the Red Fort on Independence Day, Prime Minister Narendra Modi assured support to the Baluchi struggle for self- determination. The Baluchis are Muslims and how do we support their struggle unless we give political asylum to the Baluchi leaders?

The decision of the Government is a welcome departure from the earlier policies of the Government of India. Speaking in Lok Sabha on Tibetan refugees Jawaharlal Nehru explained the three pillars on which India’s refugee policy was based. 1) Refugee issue is a bilateral matter; 2) The refugees will be received with compassion and understanding and 3) When the situation becomes normal the refugees would return to their homeland. The BJP Government should be commended because the persecuted minorities of Indian Origin can return to India and become Indian citizens. Where else can the Hindus turn to  for help except to their motherland? By articulating India’s responsibility Narendra Modi has rendered a commendable service.

Serious Omission

A serious omission in the bill is that it does not provide for citizenship to people of Indian Origin from Sri Lanka, who has come to Tamil Nadu as refugees after the communal holocaust in July 1983. As is well-known, they did not subscribe to the demand for Tamil Eelam and their representative organization the Ceylon Workers Congress was a part of the Government since 1978. Even then, they were subjected to savage and vicious attacks by the lumpen sections of the Sinhalese population in 1977, 1981 and 1983. They told me repeatedly that in 1983 they used to leave their houses and hide in the tea bushes during nights in order to escape violence from the Sinhalese thugs backed by powerful sections in the Government. They are convinced that they cannot co-exist with the Sinhalese and came to India as refugees with the hope that they would be conferred Indian citizenship.

The Malaiha (hill country) Tamil refugees number around 29,500 and are residing in refugee camps scattered throughout Tamil Nadu. They have absolutely no moorings in Sri Lanka. Their children have got married with local people and are well integrated in Tamil society. The young have availed of the educational facilities, but they are not getting jobs commensurate to their qualifications, because they are refugees and are not Indian citizens. The refugees from Kottapattu, with whom I interacted, told me “Come what may, we will not return to Sri Lanka”.

Landmark Judgement

On June 17, 2019 Justice G R Swaminathan of the Madurai Bench of the Madras High Court delivered a landmark judgment which will have far reaching implications on the Malaiha Tamil refugees living in Tamil Nadu.  The Honourable Judge has instructed the Government of India to consider the applications for conferment of Indian citizenship on these refugees.

The 55 applicants are living in Kottapattu camp in the Tiruchi district. They had submitted applications for conferment of Indian citizenship to the local authorities. These applications were not forwarded because it was Government of India’s policy not to confer citizenship on refugees. New Delhi subscribed to the view when normalcy returned to Sri Lanka these refugees will go back to Sri Lanka. A communication issued to the Special Commissioner for Rehabilitation by the Secretary to the Government of Tamil Nadu is extremely relevant. The circular dated November 7, 2007 stated that there are clear instructions from the Government of India “not to entertain applications of Sri Lankan refugees for the grant of Indian citizenship”.

An anomalous situation should be highlighted. India has not so far enacted a national refugee law and the term refugee has not been defined. At the same time, when there was mass exodus of Tamils from Sri Lanka in 1983 refugee status was spontaneously given to them. They were accommodated in refugee camps, they were provided with food, medicines, shelter, education and financial doles. In addition they were also permitted to work outside the camps to supplement their income. But the fact remained the Tamil refugees were considered to be “illegal immigrants” and, therefore, they were not eligible for registration under Section 6 of the Indian Citizenship Act 1955. It was also the Government’s contention that “even if the petitioners fulfill the eligibility criteria, they cannot demand citizenship as a matter of right”.

A silver lining in an otherwise gloomy situation should be pointed out. Following the assassination of Rajiv Gandhi, then Chief Minister Jayalalitha was determined to send back the Sri Lankan refugees. Considerable pressure was exerted on the refugees to sign forms to the effect that they were willing to go back to Sri Lanka. Human rights Organisations rightly pointed out that India was violating the basic principle of international humanitarian refugee law – non-refoulement – which means that a refugee should not be sent to another country against his/her wishes. In order to save embarrassment, Prime Minister Narasimha Rao, on the advice given by Foreign Secretary Muchkund Dube, permitted the UNHCR to open an office in Chennai with the mandate that it should verify the “voluntariness” of repatriation.

Fearing that they will again be compelled to return to Sri Lanka the refugees approached the Madras High Court for judicial remedy. In 1994 the Madras High Court delivered a judgment stating that the petitioners “will not be compulsorily sent back to Sri Lanka”.

The significant judgment of the Madurai bench of the Madras High Court unfortunately does not make a reference to the proposed amendment to the Citizenship Act. It will be a good idea if the petitioners can make a submission to the High Court to instruct the Central Government to include Sri Lanka also among the countries to be covered by the Citizenship Amendment Bill

What about Sri Lankan Tamil Refugees?

The Citizenship Amendment Bill pertains only to people of Indian Origin from three countries – Pakistan, Afghanistan and Bangladesh – who have sought asylum in India. The Sri Lankan Tamils do not consider themselves to be of Indian origin. They do not participate in the Pravasi Bharatiya Divas organized by the Government of India. They consider themselves to be of Tamil origin and make a distinction between India and Tamil Nadu. Moreover there is no debate within the community whether they would like to take Indian citizenship or not. There are some stray voices who advocate dual citizenship for them or free movement to India and back as the Nepalese do.  India does not recognize dual citizenship. If the Government of India withdraws the circular cited earlier that the refugees are not entitled for Indian citizenship then Sri Lankan refugees may be entitled for Indian citizenship under the clauses relating to naturalization. But they will have to surrender their Sri Lankan citizenship, which they are unwilling to do.  Comparison with the Nepalese is impractical because the movement of the people is reciprocal. And Sri Lanka will never allow Indians to move freely to Sri Lanka.

Serious Handicaps

The Malaiha Tamils have serious disadvantages. They do not have a constituency in Tamil Nadu to champion their peculiar problems and aspirations. What is more, leaders like Karunanidhi, Jayalalitha,  Nedumaran, Vaiko, Thirumavalavan, Veeramani and others turned a blind eye and never articulated their aspirations.  Compounding the situation most of them belong to the Scheduled Castes and Most Backward classes. In India, especially in Tamil Nadu, to be poor and to be a dalit, is a great handicap.

Recommendations

1. The Government of India should immediately withdraw the circular issued to the Government of Tamil Nadu that the refugees are not entitled for Indian Citizenship.
2. The Malaiha Tamil refugees should be treated on par with the Hindus and the Sikhs from Pakistan, Afghanistan and Bangladesh who have sought asylum in India. Those refugees, who want to go back to Sri Lanka, should be encouraged to repatriate themselves to the island. But those who want to take Indian citizenship should be viewed with compassion and understanding.

I would like to underline the irony of the situation. In the 1960’s the Indian Tamils wanted to take roots in Sri Lanka by acquiring Sri Lankan Citizenship. New Delhi and Colombo went against their wishes and without consulting them, the two countries entered into an agreement and conferred on majority of them Indian citizenship and brought them back to India. After 1983 having come to India as refugees, the Malaiha Tamil refugees want to take up Indian citizenship but their plea remains unheard in the corridors of power. Will Prime Minister Narendra Modi and Home Minister Amit Shah positively respond to the “voice of the voiceless” Sri Lankan refugees of Indian Tamil origin who are today living between “fear and hope”?

• Dr. V. Suryanarayan is Founding Director and Senior Professor (Retd), Centre for South and Southeast Asian Studies, University of Madras. His e mail id: [email protected]